Citation Nr: 0801121
Decision Date: 01/11/08 Archive Date: 01/22/08
DOCKET NO. 05-28 546 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in San Diego,
California
THE ISSUE
Entitlement to an increased evaluation for sinusitis,
currently evaluated as 30 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
C.A. Skow, Counsel
INTRODUCTION
The appellant served on active duty from November 1961 to May
1963.
This matter came before the Board of Veterans' Appeals (the
Board) on appeal from a June 2003 rating decision of the San
Diego, California, Department of Veterans Affairs (VA)
Regional Office (RO).
FINDING OF FACT
The appellant's sinusitis is currently manifested by
complaints of pain, constant post nasal drip, occasional
headaches, and low grade fever with flare-ups, but with
clinical findings for white mucus on the posterior
oropharyngeal wall draining from the nasopharynx.
CONCLUSION OF LAW
The criteria for an evaluation in excess of 30 percent rating
for sinusitis are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A,
5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159,
4.1, 4.2, 4.7, 4.97, Diagnostic Code 6512 (2007).
REASONS AND BASES FOR FINDING AND CONCLUSION
VCAA
Before assessing the merits of the appeal, VA's duties under
the Veterans Claims Assistance Act of 2000 (VCAA) must be
examined. The VCAA provides that VA shall apprise a claimant
of the evidence necessary to substantiate his/her claim for
benefits and that VA shall make reasonable efforts to assist
a claimant in obtaining evidence unless no reasonable
possibility exists that such assistance will aid in
substantiating the claim.
In a letter dated May 2004, VA notified the appellant of the
information and evidence needed to substantiate and complete
his claim, including what part of that evidence he was to
provide and what part VA would attempt to obtain for him.
See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1);
Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The
letter also generally advised the appellant to submit any
additional information in support of his claims. See
Pelegrini v. Principi, 18 Vet. App. 112 (2004). Thus, the
Board finds that VA met its duty to notify the claimant of
his rights and responsibilities under the VCAA.
With respect to the timing of the notice, the Board points
out that the United States Court of Appeals for Veterans
Claims (Court) held in Pelegrini that a VCAA notice, as
required by 38 U.S.C. § 5103(a), must be provided to a
claimant before the initial unfavorable agency of original
jurisdiction (AOJ) decision on a claim for VA benefits. In
this case, the appellant was given VCAA notice in prior to
the decision here on appeal, in keeping with Pelegrini,
except as to the disability rating and effective date
elements. VA sent the appellant notice of the disability
rating and effective date elements in March 2006. This is
error and presumed prejudicial to the appellant unless VA can
demonstrate otherwise. Sanders v. Nicholson, 487 F.3d 881
(Fed. Cir. 2007). In this case, the Board finds that there
is no prejudice to the appellant in this timing error because
the claim was subsequently readjudicated in April 2007 and VA
sent the appellant a Supplemental Statement of the Case dated
the same notifying him of the actions taken and evidence
obtained or received. Essentially, the appellant has not
been deprived of information needed to substantiate his
claims and the very purpose of the VCAA notice has not been
frustrated by the timing error here. Also, the Board notes
that, because the claim is denied as discussed in the
following decision, the benefit sought could not be awarded
even had there been no timing defect; as such, the appellant
is not prejudiced by a decision in this case. In the
circumstances of this case, a remand would serve no useful
purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546
(1991) (strict adherence to requirements in the law does not
dictate an unquestioning, blind adherence in the face of
overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the claimant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
claimant are to be avoided).
VA has also satisfied its duty to assist the appellant under
38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. VA treatment
records have been associated with the claims folder.
Additionally, the appellant was afforded a VA examination in
November 2005 and the opportunity to appear for a hearing,
which he declined. The appellant further indicated for the
record in April 2007 that he had no additional evidence to
submit in support of his claim. We find that there is no
indication that there is any additional relevant evidence to
be obtained either by the VA or by the appellant, and there
is no other specific evidence to advise him to obtain. See
Quartuccio v. Principi, 16 Vet. App. 183 (2002) (holding that
both the statute, 38 U.S.C. § 5103(a), and the regulation, 38
C.F.R. § 3.159, clearly require the Secretary to notify a
claimant which evidence, if any, will be obtained by the
claimant and which evidence, if any, will be retrieved by the
Secretary).
Accordingly, the Board concludes it should proceed, as
specific notice as to what evidence the appellant could or
should obtain was provided and no additional pertinent
evidence was submitted. The claimant has had sufficient
notice of the type of information needed to support the claim
and the evidence necessary to complete the application.
Therefore, the duty to assist and notify as contemplated by
applicable provisions, including VCAA, has been satisfied.
As such, the Board finds that the development requirements of
the VCAA have also been met. VA has done everything
reasonably possible to assist the claimant. Accordingly,
appellate review may proceed without prejudice to the
claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993).
Claim for Increase
Disability evaluations are determined by the application of
the VA Schedule for Rating Disabilities (Rating Schedule).
38 C.F.R. Part 4. The percentage ratings contained in the
Rating Schedule represent, as far as can be practicably
determined, the average impairment in earning capacity
resulting from diseases and injuries incurred or aggravated
during military service and their residual conditions in
civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If
two evaluations are potentially applicable, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that
evaluation; otherwise, the lower rating will be assigned. 38
C.F.R. § 4.7.
Separate evaluations can be assigned for separate periods of
time based on the facts found. In other words, the
evaluations may be "staged." Hart v. Mansfield, No. 05-
2424 (U.S. Vet. App. Nov. 19, 2007); see also Fenderson v.
West, 12 Vet. App. 119, 126 (2001). A disability may require
re-evaluation in accordance with changes in a veteran's
condition. It is thus essential, in determining the level of
current impairment, that the disability be considered in the
context of the entire recorded history. 38 C.F.R. § 4.1.
The appellant seeks an increased rating for sinusitis,
currently rated as 30 percent disabling under Diagnostic Code
6512. He contends that he has increased nasal symptoms
associated with service-connected sinusitis, including pain
or sinus pressure, crusting, post nasal drip, and headaches.
We conclude that the disability has not significantly changed
and that a uniform evaluation is warranted.
Diagnostic Code 6512 provides a 30 percent evaluation for
three or more incapacitating episodes per year of sinusitis
requiring prolonged (lasting four to six weeks) antibiotic
treatment, or; more than six non-incapacitating episodes per
year of sinusitis characterized by headaches, pain, and
purulent discharge or crusting. An incapacitating episode of
sinusitis means one that requires bed-rest and treatment by a
physician. A 50 percent rating is warranted following
radical surgery with chronic osteomyelitis, or; near constant
sinusitis characterized by headaches, pain and tenderness of
affected sinus, and purulent discharge or crusting after
repeated surgeries. 38 C.F.R. § 4.97, DC 6512.
In weighing the appellant's statements, treatment records,
and VA examinations of record, the Board concludes that the
criteria for an evaluation in excess of 30 percent are not
met.
In 1965 he underwent sinusotomy of the left frontal and left
ethmoidal. During hospitalization in 1985, for an unrelated
matter, it was reported that his history was positive for
left sinus operations of which he had had multiple.
VA treatment records dated July 2002 through May 2006 show a
history of sinusitis and complaints of post nasal drip. The
appellant does not report nor does the evidence show that he
has had nasal surgery revision since 1966 or sinus infection.
A report of VA examination dated April 2003 reflects
complaints of constant post nasal drip, frequent episodes of
sinus pressure, and occasional severe headaches. At this
time, a moderate amount of nasal discharge and crusting was
found in the left nasal cavity. On VA examination in May
2004, the appellant reported similar complaints along with
nausea and decreased appetite. He denied sinus surgery and
antibiotic treatment since 1966. Bilateral inferior
turbinate hypertrophy was found along with a deviated septum,
and minimal tenderness of the left maxillary sinus. On VA
examination in September 2006, the appellant complained of
constant post nasal drip, occasional headaches, increased
tearing and conjunctivitis during flare-ups of headaches
along with occasional low grade fevers and chills. The
examiner noted that the appellant has not seen a physician
nor taken any medication for these problems. Objectively,
the nasal mucosa was red and there was no mucopurulent
drainage from the middle meatus. There was a deviated nasal
septum and white mucus on the posterior oropharyngeal wall
draining from the nasopharynx. The examiner suggested that
the appellant seek medical treatment and, if not sufficient,
he may need repeat frontal sinus surgery.
Neither the appellant's complaints nor the pertinent medical
findings of record support the assignment of a rating in
excess of the current 30 percent rating. The Board notes
that an increased evaluation requires either radical surgery
with osteomyelitis or specific nasal symptoms after repeated
surgeries. The appellant underwent sinusotomy in 1965 and
the appellant had one nasal revision in 1966. The
possibility of another surgery has also been suggested.
However, his condition has not been manifest by subsequent
near constant sinusitis characterized by headaches, pain and
tenderness of affected sinus, and purulent discharge or
crusting. Despite his repeated complaints, he has not
manifested the frequency of crusting and purulence expected
for a 50 percent evaluation. Rather, there has been
infrequent crusting and although there has been drainage, it
has not been described as purulent. Accordingly, the claim
is denied. Absent a relative balance of the evidence, the
evidence is not in equipoise and the benefit-of-the-doubt
doctrine does not apply. 38 U.S.C.A. § 5107(b); Gilbert v.
Derwinski, 1 Vet.App. 49 (1990).
ORDER
An increased evaluation for sinusitis is denied.
____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs